An uncoordinated approach to treaty-making creates a quandary for Aboriginal and Torres Strait Islander peoples

As the nation waits with bated breath for the next iteration of Closing the Gap – an artfully deceptive project titled “Closing the Gap Refresh” – a much older and even more pilloried Commonwealth policy of shared responsibility agreements is being given new life under the nominal guise of “Treaty”. Shared responsibility agreements were first introduced in 2004 as part of the federal government’s “new arrangements” between Indigenous peoples and the state. This involved communities negotiating core infrastructure or basic services in exchange for behavioural change. These agreements included the lyrically paternalist no school, no pool.

But treaties are not service-delivery agreements. They are not a means to rubber stamp the status quo. The uncoordinated pursuit of treaty across the federation creates a quandary for Aboriginal and Torres Strait Islander peoples. There is a real risk of further embedding the current power imbalance that the Uluru Statement from the Heart singled out as the torment of our powerlessness.

Treaties are foundational constitutional agreements between First Nations and the state that involve a redistribution of political power. Treaties are agreements aimed at settling fundamental grievances, and establishing binding frameworks of future engagement and dispute resolution. Treaties are legal frameworks, so there will be disputes over interpretation. Treaties are not blank canvases on which governments and overbearing bureaucrats can present the status quo.

Consider this from the Northern Territory government, which at Barunga last month signed a memorandum of understanding on a treaty in its jurisdiction: “Instead of a one-off reparation paid out for past injustices and for Aboriginal land and resources, a treaty could mean that the Government provides money for education or housing, and the community takes responsibility for how it is delivered locally.”

Um. Treaties are about reparations for past injustices and about land and resources. How can these things be excluded? The NT government should not be fencing in treaty negotiations like this at the MOU stage.

These wildly oscillating definitions have emerged because Australia, while experienced in agreement-making due to the native title and the varying statutory land-rights regimes achieved without treaty, is green when it comes to treaty-making. There are suggestions that the Noongar settlement in Western Australia was the nation’s first treaty, others say it is “treaty-like”; some say all Indigenous land use agreements are treaties, and others that a treaty simply maps out rules of engagement. Many say a treaty must involve recognition of Aboriginal sovereignty while others say it’s about service delivery. Everything and nothing is a treaty.

We have a discursive understanding of treaty because we are retrofitting that which should have been done at first contact.

Across the federation now, we hear of bureaucracies seeking to embed in treaty agreements their contemporary policies, such as local decision-making frameworks misguidedly characterised as the right to self-determination. Self-determination at the end of the ATSIC era meant regional autonomy in some places. More than a decade on, we have allowed self-determination to be misshapen into a mantra of “doing things with communities not doing things to Indigenous communities”; an extraordinary jettisoning of a purposefully emancipatory normative framework of collective rights endorsed by the United Nations General Assembly in 2007. Treaty should be about expelling bureaucrats from Indigenous affairs, not entrenching the power imbalance.

A substantive treaty has always been the primary aspiration of the Aboriginal and Torres Strait Islander movement. Perhaps that is why some people were confused last year when a series of 12 First Nations Regional Dialogues, followed by the First Nations National Constitutional Convention at Uluru, adopted a constitutionally enshrined Voice to Parliament as the principal constitutional reform. This much should be clarified: these regional dialogues didn’t undermine the aspiration for treaty, they designed a sequenced reform in which a Voice to Parliament is the first step, and treaty-making follows.

After the destruction wrought by the Indigenous Advancement Strategy (IAS) – a federal government policy established in 2014 that has seen funding ripped out of communities, with the bulk of it shifting to non-Indigenous hands – participants in the constitutional dialogues were unequivocally attracted to a Voice. The damage caused by the IAS dominated considerations of constitutional recognition; without understanding this you cannot understand the need for sequenced reform as defined at Uluru. The Australian National Audit Office found that the IAS strategy was planned and designed in seven weeks! Seven weeks it took to unravel the last vestiges of self-determination started 43 years ago in 1975. The audit office also found that the grants administration processes adopted under the IAS “fell short of the standard required to effectively manage a billion dollars of Commonwealth resources”. And as asserted by many communities at the time, the reasons for losing funding were not communicated. It also found that the “basis by which projects were recommended to the Minister was not clear” and the department did not “assess applications in a manner that was consistent with the guidelines and the department’s public statements”, nor did it keep records of key decisions. So much for the great national mythology: that the “Aboriginal industry” benefits Aboriginal people. As Noel Pearson told The Australian, “Most Australians have no idea that the greatest beneficiaries of investment of indigenous funds are non-indigenous organisations not based in the communities in whose name the expenditure has been justified by parliament.”

The First Nations Regional Dialogues sequenced the road to a settlement: Voice, Treaty, Truth. Approximately 1300 Aboriginal and Torres Strait Islander peoples participated in the dialogues, 60 per cent of whom came from traditional owner groups. In other words, the dialogues represented a majority of the first nations cultural authority in Australia. We heard stories about the way in which native title had torn communities and families apart. We heard the call for dispute-resolution services in communities before agreement-making could occur. We heard complaints about land-governance structures.

The situation on the ground is complex. The dialogues found that agreements needed to be many, with multiple First Nations; not a single pan-Aboriginal treaty in which nations are subsumed by a reductionist concept of cultural authority. Even so, as Australia is a federation, dialogues discussed how coordination across the Commonwealth was essential for coherency of agreement-making.

After the constitutional convention at Uluru (and prompted by Prime Minister Malcolm Turnbull’s rejection of a Voice to Parliament), some decided to ignore the sequencing of Voice, Treaty, Truth, and have instead demanded only treaty. As if the federal government, having rejected a Voice – a modest but powerful reform that enhances Indigenous participation in the democratic life of the state – would instead suddenly embrace shared sovereignty and reparations. So-called allies transformed overnight from conservative champions of symbolism and incrementalism to – “Treaty, now!” – taking advantage of the heavy lifting done by the dialogues and Uluru to cherrypick reform.

Yet these treaty champions can’t tell you how treaty would be achieved, or who it would be negotiated with, or for whom, let alone what resources communities have now and what they need, or how power imbalances are to be addressed when nations have very little leverage. It is those at the dialogues who thought deeply about these questions. And they thought deeply about them based on a realistic picture of where communities are now.

There are many risks in an uncoordinated approach to treaty-making. Australia is a federal system, and the Commonwealth rules the roost. It can override any conflicting treaty provision. The jurisdiction with the biggest risk is the Northern Territory, because it is a territory. Gumatj leader Galarrwuy Yunupingu called this out following the signing of the Barunga treaty memorandum. “None of the land councils can tell me anything about treaty,” he said. “What does the word ‘treaty’ mean? Nothing. It means nothing to Yolngu people.” And as former Tangentyere Council CEO Geoff Shaw stated at Barunga, treaty talks would be meaningless without constitutional reform, because “the strength is within the Constitution”.

Even so, people point to evidence of treaty momentum in other parts of the country too. Victoria’s process, for example, is led by a Treaty Advancement Commissioner, the formidable and whip-smart Jill Gallagher, a Gunditjmara woman from the state’s south-west, who is one of the most impressive Aboriginal leaders I have ever encountered. Gallagher says Victoria can’t sit back and wait for the Commonwealth to come to the table. As was acknowledged at the Uluru and regional dialogues, the order is important. Victoria has settled on a two-phase approach, the first of which is to create an “Aboriginal Representative Body, a democratic voice to represent Aboriginal Victorians in the next stage of the journey to treaty”.

Of course it helps to be clear headed about what’s going on: treaty negotiations are progressing in less-conservative jurisdictions. (Soon after South Australia changed political stripes, treaty talks were disbanded.) These states and territories are innovating because the Commonwealth is failing, which is exactly how a federation should work.

The voice to parliament is not an original idea. It is as old as the calls for treaties. Aboriginal and Torres Strait Islander peoples have always wanted an enhanced role in decision-making in Australia’s democracy. Having a role in democracy, though, does not mean that the bureaucracy should be the conduit of that participation. Especially when the bureaucracy has a penchant for new-age philosophy: for mob finding the power “within” as opposed to gaining structural power. Indigenous peoples in other liberal democracies get constitutional reform; we get Anthony Robbins affirmations as policy.

All the positivity in the world will not change the statistics in child removals and youth detention, the two concerns voiced in the Uluru Statement. Paul Toohey writing in the NT News excoriated the prime minister for his elevation of success stories in his Closing the Gap speech. Toohey rightly called out Turnbull for “averting his gaze”. Highlighting structural problems is not about highlighting deficits. Talking about powerlessness and voicelessness is not to strip people of agency. We know our people have inner strength and are resilient. But we are not talking about personal or cultural power, we are talking about structural power. Agency still needs structural reform. The dialogues were realistic about how whitefella law works and how conventional law reform is done. The dialogues spoke pragmatically about how the law can compel the government to listen. This is the majesty of the force of law.

Inevitably, we, as Aboriginal and Torres Strait Islander peoples, have to manage the titanic expectations of community that come with utopian ideals of treaty. After all, much of what would be done via treaty has already been done through land rights and other statutory regimes. Treaty is not an end, it is the beginning of the state acknowledging our grievances. Other jurisdictions in the world show us that post treaty-making can be messy and legalistic. And in the clamouring to negotiate and sign treaties, we risk the unedifying prospect of mob jettisoning sovereignty through a mismanaged treaty process, when that was the reason so many eschewed constitutional recognition in the first place. Our sovereignty has never been ceded – not in 1788, not in 1967, not with the Native Title Act, not with the Uluru Statement from the Heart. It coexists with the sovereignty of the Crown and should never be extinguished.

Megan Davis is a Cobble Cobble woman from Queensland, a pro vice chancellor and professor of law at UNSW, and a member of the Referendum Council.

As the nation waits with bated breath for the next iteration of Closing the Gap – an artfully deceptive project titled “Closing the Gap Refresh” – a much older and even more pilloried Commonwealth policy of shared responsibility agreements is being given new life under the nominal guise of “Treaty”. Shared responsibility agreements were first introduced in 2004 as part of the federal government’s “new arrangements” between Indigenous peoples and the state. This involved communities negotiating core infrastructure or basic services in exchange for behavioural change. These agreements included the lyrically paternalist no school, no pool.

But treaties are not service-delivery agreements. They are not a means to rubber stamp the status quo. The uncoordinated pursuit of treaty across the federation creates a quandary for Aboriginal and Torres Strait Islander peoples....